What Does the Bona Fide Qualification (Section 5) of the Proposed MCRI Amendment Mean?

The bona fide qualification (BFQ) exception to the prohibition of sex discrimination and preferential treatment, section 5 of the proposed MCRI amendment, states:

5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.

Michigan’s Elliott-Larsen Civil Rights Act has something similar called a BFOQ exemption:

37.2208 Application for exemption; bona fide occupational qualification.

Sec. 208.

A person subject to this article may apply to the commission for an exemption on the basis that religion, national origin, age, height, weight, or sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise. Upon sufficient showing, the commission may grant an exemption to the appropriate section of this article. An employer may have a bona fide occupational qualification on the basis of religion, national origin, sex, age, or marital status, height and weight without obtaining prior exemption from the commission, provided that an employer who does not obtain an exemption shall have the burden of establishing that the qualification is reasonably necessary to the normal operation of the business.

Title VII of the federal Civil Rights Act also provides a BFOQ exemption to the general prohibition on sex discrimination in employment.  BFOQ may be used as an affirmative defense by employers to the allegation of illegal sex discrimination.

The BFOQ issue has been litigated fairly extensively in the employment context, i.e. the definition of "reasonably necessary to the normal operation of the business."  The first and seminal case on this issue was brought by a male applicant for a stewardess position on an airline.  The court held that stewardess jobs are not inherently a female-only job and males must be allowed to apply.  Thus we now have flight attendants.

Bodily privacy of a customer or client is one of the exemptions that has been found a reasonable business necessity by the courts.  Thus, a female BFOQ is appropriate for a position that helps female customers in a locker room or in a female underwear section of a department store.

Inclusion of Section 5 in MCRI would not change the right of an employer to have female-designated BFOQ positions that were reasonably necessary to business operations.  BFOQ exemptions have been construed very narrowly over the years in the employment context.

There is no sex BFQ in the other sections of the Elliott-Larsen Civil Rights Act covering public accommodations, public service, and housing. 

Section 5 of MCRI might be used to permit BFQ designation of sex in the education and public contracting context, a new state legal phenomena of unknown consequences.